Hiskey v Westpac Banking Corporation

[1999] FCA 1797

FEDERAL COURT OF AUSTRALIA

Hiskey v Westpac Banking Corporation [1999] FCA 1797

PRACTICE AND PROCEDURE - notice of motion to strike out application - application alleging discrimination in contravention of the Disability Discrimination Act 1992 (Cth) - grievance not prosecuted in the Human Rights and Equal Opportunity Commission - limits on jurisdiction of Federal Court in relation to matters under that Act.

Federal Court Rules, O 20 r 2
Disability Discrimination Act 1992 (Cth), Part 4, s 102(1), s 103(1), s 105A, s 130
Judiciary Act 1903 (Cth), s 39B, s 39B(1A)(c)

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (referred)
Neil v Nott (1994) 121 ALR 148 (referred)

ELIZABETH HISKEY v WESTPAC BANKING CORPORATION
S 84 of 1999

FINN J
ADELAIDE
13 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 84  OF 1999

BETWEEN:	ELIZABETH HISKEY Applicant
AND:	WESTPAC BANKING CORPORATION Respondent
JUDGE:	FINN J
DATE OF ORDER:	13 DECEMBER 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        the application be struck out with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 84  OF 1999

BETWEEN:	ELIZABETH HISKEY Applicant
AND:	WESTPAC BANKING CORPORATION Respondent

JUDGE:	FINN J
DATE:	13 DECEMBER 1999
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me a notice of motion seeking that the application brought by Elizabeth Hiskey as applicant against the Westpac Banking Corporation as respondent be struck out in its entirety.  The application has been brought for practical purposes under O 20 r 2 of the Federal Court Rules.  As is well known, the strike-out procedure laid down in that rule is one in which an order will only be made in a very clear case.  I need not refer to the statements of principle in this matter.  I simply draw attention to the well-known decision of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

2. Ms Hiskey has represented herself throughout the proceeding in this Court.  Bearing in mind the responsibility of judges dealing with a litigant so circumstanced - see the decision of the High Court in Neil v Nott (1994) 121 ALR 148 - I have a responsibility to attempt to ascertain what Ms Hiskey's rights are from the documentation that she has filed. It would appear from the application that her claim is under the Disability Discrimination Act 1992 (Cth). In that application she is seeking a declaration that Westpac Banking Corporation has discriminated against her. She has also sought injunctive relief and damages.

3. The basis for the claim of discrimination relates apparently to the proceedings taken by the Bank after Ms Hiskey fell into arrears in respect of a loan and mortgage arrangement with the Bank.  Those steps in the event have led to legal proceedings, resulting in the respondent obtaining vacant possession of her land.  It is apparently the manner in which officers of the Bank acted in securing that outcome in the Supreme Court of South Australia that grounds her complaint.

4. While approaching the Human Rights and Equal Opportunity Commission in April of 1999 for the purpose of making a complaint, Ms Hiskey has not prosecuted her claim before the Commission. She was apparently aggrieved by the response she obtained on that occasion when seeking assistance. I express no view on the reasonableness or otherwise of the conduct of the officers of the Commission on that occasion. The important point to be emphasised is that Ms Hiskey's complaint of disability discrimination has not been the subject of inquiry and determination by the Commission under Part 4 of the Disability Discrimination Act. 

5. The Federal Court of Australia is a court of statutory jurisdiction. The principal source of that jurisdiction is to be found in s 39B of the Judiciary Act 1903 (Cth). Section 39B(1A) gives this Court original jurisdiction in any matter (subpara (c)) "arising under any laws made by the Parliament." The Disability Discrimination Act is such a law. However, that Act makes particular provision for the jurisdiction that this Court will enjoy under it. That for present purposes is s 130 of the Act, which provides that the Federal Court has jurisdiction with respect to matters arising under Part 4. Part 4 is the provision dealing with inquiries and civil proceedings. Insofar as the capacity to take civil proceedings in this Court is concerned, s 105A only provides for proceedings to enforce a determination of the Commission under ss 102(1) or 103(1). In other words, it is premised upon a prior favourable determination by the Commission.

6. More importantly, though, it would seem from the structure of the legislation that the conferral of jurisdiction in relation to Part 4 and the scheme of the Act in giving investigative jurisdiction to the Commission have the effect that the Court does not have jurisdiction in relation to matters arising under other parts of the same Act. In these circumstances, the proceeding before this Court is one in respect of which I have no jurisdiction. In consequence, the only proper order for me to make is to strike out the application, and that is the order that I intend to make in the circumstances.

7. The order of the Court will be that the applicant's application dated 1 October 1999 be struck out, with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             20 December 1999

The Applicant appeared in person.
Counsel for the Respondent:	Mr S B Williams
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	13 December 1999
Date of Judgment:	13 December 1999